Q&A: What you need to know about the Supreme Court nomination battle

Here are some answers on what’s to come in the nomination fight over Judge Merrick Garland.

Q. What is the process to confirm a U.S. Supreme Court nominee?

A. Typically, the Senate Judiciary Committee would ask Garland to fill out an extensive questionnaire and provide reams of material, including speeches and published academic articles, from his career.

Committee lawyers would do an extensive examination of his record. Members of the committee would also sit down with Garland privately and discuss any concerns and question him on his views. The committee would then convene a hearing to question him publicly and also to hear from witnesses supporting and opposing his nomination.

After another round of written questions, the committee would eventually vote and could send his nomination to the floor for consideration by the full Senate even if he did not win a committee majority. But Senate Republicans, who control the committees and the floor by virtue of their majority status, have said repeatedly they will take no action on Garland’s nomination.

Q. Can the Senate bypass the Judiciary Committee, hold hearings of its own and confirm the nominee?

A. The Senate could take up the nomination without action by the Judiciary Committee through a vote to bring it directly to the floor. But that is extremely unlikely to happen in this case. The Senate could also debate the nomination on its own, but would not conduct a hearing.

Q. Does Sen. Mitch McConnell, R-Ky., have the singular right of refusal to allow Garland a hearing or vote?

A. As the majority leader, McConnell controls what is happening on the Senate floor. He could be overruled by a majority vote of the Senate, but his Republican colleagues would not cooperate in that effort because that would, in effect, be relinquishing the power of the majority.

If McConnell went against the wishes of a majority of his Republican colleagues, they could try to remove him from leadership. But most Republicans strongly side with him on not taking up the nomination.

Q. How long will all of this drag on?

A. In the past, it has taken a couple of months from nomination to confirmation. Under normal circumstances, Garland could be on the court by June if he won a Senate vote. But this fight is likely to go on for the rest of the year and into 2017.

If Republicans hold to their position not to act, the next president would have to make a nomination after taking office Jan. 20. Choosing a nominee and getting the Senate to act would again take months, so the court could be without a full complement of judges into mid-2017.

Q. How likely is it that Republicans would confirm Garland in a lame-duck session after the election, should a Democrat win?

A. A handful of Republicans have publicly raised the idea of confirming him after the election if Democrats win the White House because Garland is considered a moderate and could be more acceptable to them than anyone picked by Hillary Clinton or Sen. Bernie Sanders.

McConnell has said he would not act in a lame duck but it is possible he could change his mind. The likelihood of that occurring is entirely dependent on the election results. Republicans who are against the idea agree that it would run counter to their argument to “let the people decide,” but they might be willing to take the heat if it suits their political purposes.

Q. Is it possible to appoint a U.S. Supreme Court nominee as a recess appointee?

A. Yes, it is possible and has been done. But it is unlikely in this case. And to eliminate even the chance of it happening, the Senate intends to meet occasionally in pro forma sessions even when lawmakers are out of town to block President Barack Obama from taking advantage of a recess to make an appointment.

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